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Divorce is an emotionally draining and devastating experience. As you move on to a new chapter in your life, it’s important for you to consider how you might still be connected and entangled to your former spouse. In fact, after your divorce, you need to give your entire estate plan much more attention than when you were married because now that your former spouse is out of the picture, you will not be able to rely upon him or her to manage your affairs when you can’t and/or distribute your assets after you die.

For most people in California, an estate plan will have 4 foundational documents:

  1. A last will and testament;
  2. A durable power of attorney;
  3. A health care directive; and
  4. A revocable trust.

If you prepared these documents when you were married, you probably have your now former spouse on these documents. Your former spouse may be named in your will to inherit or distribute your estate after your death, have power of attorney over your affairs when you are incapacitated, and be listed as the person who will make critical medical decisions for you when you can’t make them yourself.

But, now that you are divorced, your wishes with respect to what you want to happen to your property after you die, who you want to manage this property, and who you want to make decisions on your behalf when you are unable to do so yourself are likely to have changed. Generally speaking, most people do not want their former spouses in these positions of authority and responsibility. So, it may be time to make some changes to your estate planning documents.

Updating Your Estate Plan

Now that you are divorced, you need to first rethink what you want to have happen to your estate should you die and who you want to name as the executive or trustees of your estate. Then, with regard to durable powers of attorney and health care directives, you need to reconsider who want as the person handling your affairs and making critical health care decisions on your behalf when you are unable to make these decisions yourself.

It would also be wise to review and update the following documents

  • Revocable trusts
  • Life Insurance Policies
  • Retirement Accounts
  • Bank and brokerage accounts
  • Titles to property

Furthermore, you should identify any potential conflicts of interest with current advisors that you share with your former spouse and find new advisors if necessary.

What If I Don’t Update My Estate Plan After My Divorce?

If you don’t update your estate plan after your divorce, California law will automatically negate your former spouse’s right to handle your affairs, to inherit or be gifted property, or to be named as the beneficiary with respect to certain estate planning documents, such as any preexisting will, trust, or payable-on-death financial account. There are circumstances under which, the court could find that you intended for your former spouse to remain the trustee, executor or beneficiary of your estate despite your divorce.

The law doesn’t usually negate a former spouse’s right to be designated a beneficiary on other estate planning documents, such as life insurance policies, pensions, and 401(k) plans. Therefore, you need to take action to ensure that your plan is complete and that what you want to have happened will happen.

For more detailed information regarding post-divorce estate planning or for help making any of the updates mentioned above, Jennifer Martin is available. As an experienced estate and family law attorney, she is uniquely qualified to help you with your post-divorce estate planning needs. You can schedule an appointment Jennifer Martin by calling our firm at 925-750-7795.

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